The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-04-20
THE RECORD OF THE COURTS.
Supreme Court.

supreme Court
Hon. Byron x Elliott. Chief justice.
The following decisions were rendered April 19
OBSERVATION-DISCLOSURES EXPERT EVIDENCE.
1865 Malchus Stephenson The State
Clinton c. c. Reversed. collars, J.-Indict-
ment for murder juror who answered upon
his volr dire that he had conscientious scrupes
against the infection of capital punishment. but
that he could pass upon the question even
though it involved the death penalty would be
incompetent, but when the record fails to show
that the court abused its discretion In discharg-
ing him. or that the accused was thereby IN
jured, this court will not interfere. u "A
non-expert witness who had testifedthat the
deceased was a large, robust and muscular man
could not be allowed to give his opinion OF the
relative strength of the parties, the accused and
& deceased. 3D. Declarations of the deceased
to :. third party subsequent to the time of the
injury ma de in the absence of the accused and
not in any way connected with SO as to be a
part of the occurrence, not competent. a.
A verbal instruction to she jury was error
CRIMINAL ADMINISTRATIONS.
134S9 Jefferson Rauck vs.. State. Fayette c.
c. Affirmed. Niblack, J.-Mere threats will
not justify the use of deadly weapon, unless
some overt act looking towards carrying SUCH
threats into execution has been committed. u
Where the instructions given in case are found
to be correct as far they have gone, the judg-
ment will not be reversed because they did not
cover all matters of law involved in the case.
When a proper and material instruction, cover
ouested and refused, the Judgment will be re-
versed for failure to instruct thereon.
RAILRoADs-LoT- owNER-DAMAGEs.
1882. l.. B. & w. Railway Company
Frank Eberle. Marion S. G. Reversed. Mitch
ell. IAN abutting lot-owner whose title ex-
tends to the middle of highway. forty feet in
width, before he can maintain an action for
damages for injury to property againstta rail-
road company, for an unlawful obstruc ton,
eleven feet in width, on the opposite side of the
street. he must show that the obstruction pre-
sents a physical disturbance of the right OF en-
joyment Of his property, so to impair its use
in the manner in which it heretofore
actually enjoyed and used. and that the disturb
ance of the right must have resulted IN peculiar
damage to and depreciation OF the property to
which such right appendant Il. When
the character of the injury is permanent and the
complaint for damages recognizes the right OF
the defendant to continue in the use OF the
property wrongfuily appropriated, and to &C
quire, result of the suit. the plaintiffs title
to the right appropriated the damages may De
assessed on the basis of the permanent deprecia-
ton in the property. If the action was in
trespass the rule would be different.
MISUNDERSTANDING
11465. L.. N. A. & C. Railway Company vs.
| John w. Alder. Clay c. c. Reversed. Howk,
| IA complaint may be attacked here for the
| first time but error must be predicated upon the
| complaint as an entirety. r. A complaint
! against a railroad company for personal injuries
which alleges that the defendant scarelessly, reg
ligently, wantonly and willful,y' over, etc i.
| charges the defendant simply with negligence.
| and failing to aver that plaintiff was free from
/ contriburory fault, is bad. 81 The evidence
| does not support the verdict
| FRAUDULENT OBSERVATION-DISCLOSURES.
| 1864 Peter Hunsinger ct al. VS.. Charles Hoffer.
| Fayette C. c. Affirmed. Elliott, c. J.-1n suit to
| set aside fraudulent conveyance it was compe-
| tent to show that the grantee knew there was
| an existing claim against his grantor. (2) In
such suit the plaintiff is not confined evidence
/ of the one transaction. but has q right to give
| evidence of the general course of business be-
! tween the erantor and the grantee, as we'll as of
distinct transactions. 81 The statements OF
| the grantors by whom fraudulent conveyance
/ was executed are admissible against themselves,
and cannot be excluded from the jury on the
objection Of the grantee, although they may no,
| bind him.